The Trump administration is trying to take away health care from millions of Americans. Yet nobody is campaigning on, fundraising off, or publicizing this imminent threat. That’s astounding. But any day now, aided and abetted by the 5th U.S. Circuit Court of Appeals, the Trump administration is poised to stick a knife in the heart of what remains of the Affordable Care Act. At minimum, this president will be throwing 20 million people who obtained insurance under the ACA off of their plans. That should be something we are reminded of daily.
The notoriously conservative appellate court will decide a challenge to a state-led effort to end the ACA once and for all, on the dubious legal theory that, when Congress chose not to kill Obamacare in 2017, it actually intended to kill the law. If the court embraces this theory, it could send the American health care system into a tailspin and affect nearly all Americans’ coverage to varying degrees. A three-judge panel of that court heard arguments in July. A decision is imminent.
Elections rise and fall on guarantees of affordable, efficient health care. But this looming catastrophe hasn’t come up at a single Democratic debate. It has been absent from the daily news cycle for months. Donald Trump’s fiercest critics on the hill rarely mention it. Yes, it’s easy to be distracted. After all, the Trump administration is simultaneously kidnapping children from migrant parents and bilking students to repay loans and facing an impeachment effort. But if the court he packed succeeds in destroying the ACA, it could be the single most consequential event of Trump’s presidency, and can sit right up there with the rescission of the Deferred Action for Childhood Arrivals program, the travel ban, and the family separation policy as humanitarian catastrophes. And yet almost nobody is talking about it, because it’s happening in the courts, in the dark, and yet also right out in the open.
The case is Texas v. United States, and it began as yet another Hail Mary lawsuit, brought by 20 state attorneys general to kill Obamacare. The states’ argument goes like this: In 2012’s NFIB v. Sebelius, the Supreme Court ruled that the ACA’s individual mandate to buy insurance was constitutional because it functioned as a tax. If you didn’t get coverage, you had to pay a “penalty” to the IRS. But Congress zeroed out the mandate in 2017’s tax cut bill. Now, if you don’t get coverage, you pay zero dollars; there is no more penalty. The states assert that the mandate no longer functions as a tax because it collects no money. So, the mandate must be struck down.
But the courts can’t stop there. They also have to decide if the rest of the act can function without the mandate. And when Congress passed the ACA in 2010, it found the mandate to be an integral component of the broader law. Thus, the states now argue, courts cannot “sever” the mandate from the ACA: If it is struck down, the rest of the law must fall too. Medicaid expansion, insurance exchanges, subsidies, protections for preexisting conditions—all of it must be abolished root and branch by judicial fiat. The whole thing is toast.
This argument fails on several levels. The plaintiff states argue that Congress secretly obliterated the ACA by zeroing out the mandate in the tax cut bill. By that point, though, Congress had spent many months attempting to repeal the law and failed. The best Republicans could do was kill the mandate and boast that at least they had cut Obamacare’s most controversial tax. There is absolutely no evidence that any lawmaker who voted for the tax cut bill believed they had rendered the entire law invalid. Perhaps some hoped the ACA would collapse on its own without a functioning penalty. But no one thought that removing the penalty would compel the courts to tear down every inch of Obamacare.
Even if Congress harbored this covert intent, the plaintiff states’ argument would still make no sense. The Supreme Court has ruled that an unconstitutional provision may be severed if the law remains “fully operative” without it, and Congress would’ve wanted the remainder of the law to stand. Here, we know Congress believed the ACA could operate without the mandate, because Congress already neutralized the penalty and left the rest of the law intact. Sure, some lawmakers wanted to repeal the whole act. But that is not what they did, and it is not the judiciary’s job to do it for them, in the rearview mirror. Courts are supposed to follow the text of the law, not a conjecture as to what Congress might have done if Republicans had enough votes.
Despite these logical defects, Trump’s Justice Department sided largely with the states at first. The DOJ agreed that the mandate is unconstitutional and argued that it could not be severed from key components of the law—including the requirement that insurance companies cover those with preexisting conditions and refrain from charging higher premiums because of age, gender, or health status. U.S. District Judge Reed O’Connor shocked court watchers by going further than that and ruling that the entire law must be struck down. The Trump administration then abandoned any semblance of moderation, midlitigation, and agreed with O’Connor, declaring that the whole ACA is now illegal. This about-face prompted several career attorneys to stage a walkout, refusing to sign onto the DOJ’s outrageous briefs.
While critics of O’Connor’s opinion across the political spectrum found his reasoning silly, the 5th Circuit may well affirm his decision any day now. In July, the case came before a three-judge panel that included Judge Kurt Engelhardt, a Donald Trump appointee, and Judge Jennifer Elrod, a George W. Bush appointee. Both conservatives appeared open to the conspiracy theory that O’Connor, the DOJ, and the state plaintiffs cooked up: that Congress secretly destroyed the entire ACA by zeroing out the penalty.
Elrod speculated that perhaps lawmakers thought, “Aha, this is the silver bullet that’s going to undo Obamacare.” She also noted that Congress zeroed out the mandate “in a reconciliation process,” when they were “limited in what they could do in regard to the tax bill in 2017.” Wouldn’t it make sense, she suggested, that Republicans would use their limited power to kill the “linchpin” of the law and expect the courts to finish the job?
Engelhardt asked Douglas Letter—attorney for the House of Representatives, which stepped in to defend the ACA when the DOJ refused—why the court should bother preserving any part of the law. Why, he said, should he “become the taxidermist” for the ACA when “Congress can fix this”? He also asked why the Senate “isn’t here to talk about the will of Congress.” If lawmakers really didn’t intend to wipe out the whole act, shouldn’t the Senate “also be here to say, ‘Oh, this is what we meant when we wrote this’?” (He did not appear to understand that the Senate’s Republican leaders will not lift a finger to help Obamacare.) Engelhardt then demanded to know why the House can’t “put together a cafeteria-style package” of the ACA’s most “attractive and popular” features and pass it “tomorrow.” (This is not how lawmaking works.)
It is worrisome that the 5th Circuit is actually taking the DOJ’s claims seriously. The first judge to hear this case, O’Connor, is a reactionary partisan with no respect for the rule of law. Texas routinely tosses cases onto his docket requesting a nationwide injunction against progressive policies. O’Connor barred the Obama administration from protecting transgender schoolchildren, blocked a regulation outlawing discrimination against transgender patients, and struck down a law that curbs the government’s ability to remove Native American children from their families. So it’s no shock that he wants to blow up the entire ACA on a reed-thin argument that is not supported by fact, history, or law. The judges of the 5th Circuit, by contrast, were supposed to be the adults in the room.
Yet Elrod and Engelhardt seem ready to do through judicial means what congressional Republicans could not manage to do legislatively and kill off the ACA while the public looks elsewhere. In so doing, they’ll offload this embarrassment of a case right onto the Supreme Court’s docket—just as the justices juggle an overload of partisan hot-button appeals, and Chief Justice John Roberts prepares to preside over an impeachment trial in the Senate.
But the most astonishing part of this sad episode isn’t the fact that irresponsible partisans in the judicial branch are acting lawlessly, aided and abetted by the Department of Justice. It’s that the same Americans who stopped Congress from eviscerating the ACA in 2017 by maniacally organizing, petitioning, and protesting have apparently not quite recognized that the courts are about to achieve the same outcome without their signoff. This is because the judicial branch works quietly, and without fanfare, and also because Americans don’t make phone calls to federal jurists to lobby for outcomes in lawsuits. Even if they did, such efforts do not often change judicial minds. This is, by design, how anti-majoritarian courts operate. It’s also how federal courts have managed to do, in the gun context, the abortion context, and the religious liberty context, what legislatures cannot do openly: thwart the will of the people. By design that is what courts should be doing, if the will of the people butts up against the Constitution.
Hypertechnical severability arguments cloaked in half-truths and ahistorical revisions of actual events, however, are not fundamental constitutional principles. And killing the ACA in the 5th Circuit after multiple failed efforts to kill it in Congress is not lofty judicial intercession. It is an effort to undo a law that has been wildly successful and, yes, lifesaving for millions, in a backroom, on a pretext, in defiance of both the law and the will of Congress. If the 5th Circuit guts the ACA, the Supreme Court is going to have to add it to the mounting pile of explosive election year cases it’s already got on its plate. And Americans are going to have to relearn a lesson we keep forgetting, which is that the courts are the most important legacy of any presidential election contest and that we always remember that fact, after the fact, when it is far too late.